https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12617

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CIVIL APPEAL NO. E074 OF 2025** **MARY NJERI KAROBIA……………....…………….….………. APPELLANT** **VERSUS** **JOHN KARONJI MAIGUA & MARION WACHERA KARONJI** (Suing as the legal representatives of the estate of the late CHARLES MAGERANI KARONJI)**………….……...…….…… RESPONDENT** **JUDGMENT** 1. This is an appeal from the Judgment and decree of Hon. E.G. Nderitu (Chief Magistrate) dated 12.11.2025 arising from Nyeri CMCC No. E080 of 2021. 2. The Memorandum of Appeal dated 11.12.2025 pleaded the following grounds of appeal: 3. The learned magistrate erred in law and fact in finding the Appellant 100% liable based on evidence of witnesses who did not see or insufficient evidence. 4. The learned magistrate erred in law and fact in shifting the burden of proof to the Appellant. 5. The learned magistrate erred in law and fact in relying wholly on the police abstract. 6. The learned magistrate erred in law and fact in applying the doctrine of res ipsa loquitor without proper basis. 1. The Plaint dated 11.2.2021 claimed damages for an accident that occurred on 11.8.2020 when the deceased was riding motorcycle registration No. KMEG 748B along Mweiga-Nyahururu Road at Kwangeci area when the Appellant or her driver or agent negligently and dangerously drove motor vehicle Registration No. KCT 904G causing it to violently hit the deceased who suffered fatal injuries. 2. The Respondents set forth particulars of negligence for the accident motor vehicle and pleaded special damages of Ksh. 42,350/= as well as general damages under the Law Reform Act and Fatal Accidents Act. 3. The Appellant entered appearance and filed Defence dated 30.11.2021 denying the particulars of negligence and injuries pleaded in the plaint. 4. The lower court heard the parties and proceeded to render the impugned judgment in which the Court found liability at 100% for the Respondents and awarded Ksh. 41,035/= as special damages, Ksh. 150,000/= for pain and suffering, Ksh. 1,013,733/= for loss of dependency, Ksh. 200,000/= for loss of expectation of life. 5. Aggrieved by the finding of the lower court, the Appellant lodged the appeal herein. The Appellant challenged only the finding on liability. Evidence 1. During the hearing, PW1 was John Mwangi Maigua. The deceased was his nephew. He received a call from Mary Immaculate Hospital informing him that the deceased was admitted there. He went and found the deceased in pain. He transferred the deceased to Nyeri County Referral Hospital. On cross examination, it was his case that he did not witness the accident. He established the accident motor vehicle from the police. 2. PW2 was No. 86728 Corporal Douglas Cheboi of Mweiga Police Station. He produced the police abstract dated 7.9.2020. The accident occurred on 11.8.2020. It occurred at 1650hrs. The deceased was the rider and was carrying 2 pillion passengers. On cross examination, he stated that he was not the investigating officer. The police abstract had not apportioned blame. The matter was pending under investigation. It could not be ascertained who was to blame. It was his case that after investigations, the driver of motor vehicle registration No. KCT 904G was blamed. The case was pending arrest and charging of the said driver. 3. The Appellant closed her case without calling witnesses. Submissions 1. The Appellant filed submissions dated 25.5.2026. It was submitted that the Respondents' case rested on two witnesses, neither of whom witnessed the accident. That the legal burden to prove negligence lay throughout on the Respondents. Sections 107–109 of the Evidence Act are unambiguous: whoever asserts a fact must prove it. In **Evans Nyakwana v. Cleophas Bwana Ongaro [2015] eKLR** the court restated: *"As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue..."* 2. It was also submitted that the Appellant’s election not to call evidence did not and could not shift this burden. Reliance was placed on the case of **Charterhouse Bank Limited (under statutory management) V Frank N. Kamau [2016] eKLR** where the learned judges of appeal after extensively analyzing what the High Court had made of cases where a defendant had failed to adduce evidence in support of his defence stated: “the suggestion, however, implicit in some of the decisions quoted above, that in all and sundry civil cases the failure by the defendant to adduce evidence in support of his defence means that the plaintiff’s case is proved on a balance of probabilities cannot possibly be correct.” 3. The Appellant also relied on the case of **Gichera v. Kamau** [1985] KLR 475 to submit that the doctrine of *res ipsa loquitor* was inapplicable and wrongly incorporated by the trial court. 4. The Respondent filed submissions dated 11.5.2026. It was submitted that the Appellant failed to tender any evidence at trial and the evidence of the Respondent was uncontroverted. Reliance was placed *inter alia* on **Susan Kanini Mwangangi & Another v Patrick Mbithi Kavita (2019) eKLR**. 5. It was further submitted that the Respondents proved their case on a balance of probabilities that the Appellant caused the accident and the court correctly found the Appellant 100% liable. The Respondent cited **Sally Kiboi & Another v Francis Ogaro (2012) eKLR**. Analysis 1. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 2. This court’s **jurisdiction to review the evidence should be exercised with caution.** In the cases of **Peters vs Sunday Post Limited [1958] EA 424** , the court therein rendered itself as follows:- **“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”** 1. This court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In **Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123**, this principle was enunciated thus: "...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 1. The Appellant urged the court ought to have found the deceased 100% liable for the accident while the Respondents asked the court to find the Appellants 100% liable. The court is asked to establish whether the lower court erred in finding, on a balance of probabilities that the Appellant was solely to blame for the accident. The legal burden of proof lies upon the party who invokes the aid of the law and asserts an issue based thereto and in this case the Appellant. In **Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**, the Court of Appeal held that: **“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”** 1. It follows that the initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. In **Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR** it was held that: **“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”** 1. The question then is what amounts to proof on a balance of probabilities**. Kimaru, J** in **William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526** stated that: **“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”** 1. The balance of probabilities is also about what is likely to have happened than the other. **Lord Nicholls** of Birkenhead in **Re H and Others (Minors) [1996] AC 563, 586**held that; **“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”** 1. Furthermore, the standard of proof in civil cases **must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on** a preponderance of probabilities. In **Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR**, the Judges of Appeal held that: **“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-** **“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.** **This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”** 1. It was common position of the parties that the deceased was riding a motorcycle at the time of the accident. The Respondents’ pleaded case on liability was that the Appellant’s driver failed to brake or swerve and was driving at a high speed in the circumstances. This court has reevaluated the evidence and for the reasons to be stated hereafter, the lower court was correct in its finding that the Appellant was clearly 100% to blame for the accident. 2. The Appellant did not present a case from which contributory negligence could be inferred. It was the duty of the Appellants to prove contributory negligence on the part of the deceased. The Appellants did not present a case to support a factor but for which the accident could not have occurred. No witness statement or testimony came from the Appellant. In the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 the court held that; - “In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”. 1. The accident can therefore not be said to have occurred by magic, or unidentified flying object. In a court room situation, we deal with empirical evidence on what is more probable than the other. The court can possibly get it wrong but if better still 50.01:49.99, there can be no better equal chance. This is the rule in Embu Road Services V Riimi (1968) EA22 and 25 Mzuri Muhhidin V Nazzar Bin Seif (1961) EA 201, Menezes Stylianicers Ltd CA No.46 of 1962 in which the courts held inter alia; - “Where the circumstances of the accident gave rise to the inference of negligence, the defendant, in order to escape liability, has to show that there was a probable cause of the accident, which does not create negligence or that the explanation for the accident was consistent only with absence of negligence. The essential point in this case, therefore is a question of fact, that is whether the explanation given by the Respondent shows that the probable cause of the accident was not due to his negligence or that it was consistent only with absence of negligence”. *See also* Odungas Digest on Civil case law and Procedure 3rd Edition Vol 7 page 5789 at paragraph (D). 1. PW2, the police officer’s testimony, was that the driver of motor vehicle registration No. KCT 904G was to blame after investigations so found him culpable for causing death by dangerous driving. 2. The Appellant failed to call any witness and her defence was but mere denials. As such, the evidence of the Respondent as against the Appellant was uncontroverted. In the case of *Janet Kaphiphe Ouma & Another –vs- Maries Stopes International (Kenya), Kisumu HCCC No. 68 of 2007,* Ali Aroni, J citing the decision in *Edward Muriga suing through Stanley Muriga –vs- Nathaniel D. Schulter, Civil Appeal No. 23 of 1997* held that: “In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.” 16. Guided by the above case, I find the statements in the defence filed on 10th December 2014 remain mere allegations having not been substantiated orally in court by the Appellant to controvert the Respondents testimony.” 1. This court thus notes that as pleaded by the Appellant in the Plaint, the facts of this case supported the application of the doctrine of *res ipsa loquitor*. The Appellant’s case was that this doctrine was inapplicable for want of evidence. Even though the Appellant’s view was that the lower court misapplied this doctrine, I find nowhere the court alluded to the doctrine. The court was entitled to infer negligence where the factual circumstances of the case would make proving negligence almost impossible. The Court of Appeal, in the case of [**Margaret Waithera Maina v Michael K Kimaru**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2015/5) [2015] eKLR) held as follows on *res ipsa loquitur*: “Firstly, it is doubtful whether it is a doctrine, a maxim or a principle of law. Its literal meaning is that “the thing speaks for itself”. It is said to be a mechanism whereby the claimant can be relieved of the burden of proving the negligence, and the court can infer negligence in those situations where the factual circumstances of the case would make proving it almost impossible. In the text book Charlesworth & Percy on Negligence, 12th edition, appears this passage: Although use of the maxim is periodically discouraged, it is so well entrenched that it may take some time to dislodge entirely. However, it has never been correct to describe it in terms of doctrine: I think that it is no more than an exotic although convenient; phrase to describe what is in essence no more than a common-sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. The question whether to apply the maxim has usually arisen where the claimant is able to prove the happening of an accident but little else. He might well be unable to prove the precise act or omission of the defendant which caused an accident to occur, but if on the evidence it is more likely than not that its effective cause was some act or omission of the defendant, which would constitute a failure to take reasonable care for his safety, then in the absence of some plausible explanation consistent with an absence of negligence, the claim would succeed.” 1. The Respondents pleaded *res ipsa loquitor.* However, it was not even necessary to plead the doctrine; it was enough to prove the facts which make it applicable. These sentiments were expressed by Hobhouse, LJ in the case of [**Ratcliffe v Plymouth & Tobay**](https://www.casemine.com/judgement/uk/5a8ff70e60d03e7f57ea6e7c) HA [1998] PIQR 170: "......the expression res ipsa loquitur should be dropped from the litigator's vocabulary and replaced by the phase 'a prima facie case'. Res ipsa loquitur is not a principle of law: it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case has been made out.” Secondly, it does not have to be pleaded, as erroneously held by the High Court in this case. This Court so stated in the case of Nandwa v Kenya Kazi Ltd, Civil Appeal No. 91/1987 for the reason that evidence is not to be pleaded. Also see Bennet v Chemical Construction (GB) Ltd 3 All ER 822 where the Court emphasized that: It is not necessary to plead the doctrine; it is enough to prove the facts which make it applicable. ”Whether it be referred to as a maxim, doctrine, principle or merely a rule of evidence affecting the onus of proof, it is our conclusion, in view of the learning cited above, that it was unnecessary to apply it in this matter since the negligence of the respondent’s driver was proved on a balance of probability.” 1. Negligence would be inferred under res ipsa loquitor where the object causing accident was entirely under the control of one party and something happens while under the control of that party, which would not in the ordinary course of things happen without negligence. It could not be said to be ordinary without evidence that the deceased just drove into the Appellant’s motor vehicle. In the case of [**Sally Kibii & another v Francis Ogaro**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2012/1874) [2012] eKLR Ibrahim, J (as he then was) pronounced himself as follows:- “To my understanding, “res ipsa loquitor” would apply where the subject matter is entirely under the control of one party and something happens while under the control of that party, which would not in the ordinary course of things happen without negligence. See Bikwatirizo v Railway Corporation [1971] EA 82. To successfully apply this doctrine, there must be prove of facts that are consistent with negligence on the part of the defendant as against any other cause. This is a case of two cars colliding. What facts have been proved by the Plaintiff to presume negligence on the part of the defendant as against the other vehicle? Can I safely presume that the mere fact that the two cars being KAK 746 J and KAG 331 K collided, negligence was on the part of the defendant’s case and not the other? The plaintiff must prove facts which give rise to what may be called the res ipsa loquitor situation. There cannot simply be an assumption in the Plaintiff’s case in this case. If the deceased was in a self-involving accident as against a collision, then perhaps, such a presumption can be made against the owner of the car. With respect, I disagree with the appellant’s counsel that the burden of proof of occurrence of an accident shifted to the other side. I hold the view, that the defendant is only enjoined to rebut the presumption of res ipsa loquitor after the plaintiff has established a prima facie case by relying on the facts of an accident. It is after this that the court is called upon to evaluate the evidence and find if the inference of negligence should be drawn against the defendant.” 1. In the instant case there was no eye witness to shed light on how the accident occurred. The police abstract on record showed that the accident was under investigation. PW2 testified that investigations were determined and the driver of motor vehicle registration No. KCT 904G found culpable for causing danger by dangerous driving. The accident involved a motor cycle and a motor vehicle and from the evidence nothing attributes liability to the deceased. 2. Therefore, there was no way to find blame on the part of the deceased. The appeal is not merited. Determination 1. In the upshot, I make the following orders: - 2. The appeal is not merited and is dismissed. 3. The Respondents are entitled to the costs of the appeal assessed at Ksh. 85,000/=. 4. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** onthis **30th** day of **July,** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform **KIZITO MAGARE** **JUDGE** **In the presence of: -** Mr. Odiyo for the Appellant Mr. Sirma for Kiragu for the Respondent Court Assistant – Timothy